BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN D. BAWEK,
 
         
 
              Claimant,
 
         
 
         VS.                                        File No. 776636
 
         
 
         JENS OLESEN & SONS
 
         CONSTRUCTION CO.,                       A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Steven D. Bawek, against his employer, Jens Olesen & Sons 
 
         Construction Co., and its insurance carrier, Iowa Contractors 
 
         Workers' Compensation Group, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an injury sustained 
 
         October 5, 1984.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Waterloo, Iowa, on 
 
         December 30, 1986.  The record was considered fully submitted at 
 
         close of hearing.  Pursuant to the prehearing stipulation of the 
 
         parties and a form 2A filed May 5, 1986, claimant has received 
 
         sixty weeks of benefits from October 6, 1984 through November 27, 
 
         1985.
 
         
 
              The record in this case consists of joint exhibits 1 through 
 
         10 as well as of claimant's and Kathleen Bawek's testimony.  
 
         Joint exhibit I is Dr. Cameron's medical reports from October 5, 
 
         1984 through July 24, 1985.  Joint exhibit 2 is St. Francis 
 
         Hospital records from October 5, 1985 through November 26, 1984. 
 
          Joint exhibit 3 is Dr. Delbridge's medical reports from November 
 
         16, 1984 through January 22, 1986.  Joint exhibit 4 is Dr. 
 
         Delbridge's office notes with x-ray reports attached from 
 
         November 16, 1984 through January 22, 1986.  Joint exhibit 5 is 
 
         Dr. Worrell's medical records from June 12, 1985 through October 
 
         25, 1985.   Joint exhibit 6 is Dr. Worrell's medical notes from 
 
         June 11, 1985 through July 25, 1985 with a report of July 11, 
 
         1985.  Joint exhibit 7 is the deposition of Dr. Delbridge taken 
 
         May 20, 1986.  Joint exhibit 8 is Dr. Worrell's medical report of 
 
         July 7, 1986.  Joint exhibit 9 is claimant's deposition taken May 
 
         20, 1986.  Joint exhibit 10 is Dr. Worrell's deposition taken 
 
         December 29, 1986.
 
         
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   2
 
         
 
         
 
                                     ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1)  Whether a causal relationship exists between claimant's 
 
         injury and his asserted disability; and
 
         
 
              2)  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement.
 
         
 
              Per the prehearing report, the parties stipulated that 
 
         claimant received an injury which arose out of and in the course 
 
         of his employment, and that claimant's rate of weekly benefits is 
 
         $232.52.  Per the attachment to the prehearing report and 
 
         agreement of counsel at time of hearing, the parties agreed that 
 
         claimant received an injury to his left wrist and that if 
 
         claimant's injury is to that scheduled member only, his permanent 
 
         partial disability entitlement is that impairment rating which 
 
         Dr. Delbridge assigned.  Claimant contends, however, that he 
 
         received a head injury causally related to his work injury which 
 
         head injury extends his disability into the body as a whole and 
 
         entitles him to industrial disability benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Thirty-two year old claimant testified that he was injured 
 
         on October 5, 1984 when he fell from the top rung of an eight 
 
         foot stepladder onto a concrete floor hitting his head and left 
 
         wrist on the floor.  Claimant sustained a two inch laceration 
 
         .above the left eyebrow and minor abrasions to the middle 
 
         forehead and a commuted Colle's fracture of the articular surface 
 
         of the radius and ulnar styloid tip of the left wrist.
 
         
 
              Alan B. Cameron, M.D., initially treated claimant at St. 
 
         Francis Hospital emergency room on his injury date with sutures 
 
         for the facial laceration.  Claimant's wrist was cast.  After the 
 
         cast was removed claimant was referred to physical therapy for 
 
         wrist rehabilitation.  On February 7, 1985, Dr. Cameron opined 
 
         that claimant had nonunion of the distal ulnar fracture and 
 
         evidence of osteoporosis with disuse.  He then recommended 
 
         claimant seek vocational rehabilitation to a less physical 
 
         occupation and opined claimant would likely not be able to return 
 
         to construction work.  On May 14, 1985, Dr. Cameron opined that 
 
         claimant was permanently disabled from work with heavy vibration 
 
         to his left wrist or heavy jarring to the left wrist such as 
 
         sledgehammer or air hammer work and that he should avoid lifting 
 
         greater than twenty pounds in the left wrist.  On July 24, 1985, 
 
         Dr. Cameron stated that claimant had a restriction of supination 
 
         with eight percent disability, restriction of pronation with 
 
         eight percent disability, restriction of radial deviation with 
 
         two percent disability, and restriction of ulnar deviation with 
 
         two percent disability resulting in a thirteen percent 
 
         "disability" under the AMA Guides combined values.  Dr. Cameron 
 
         is a family practitioner.
 
         
 
              Arnold E. Delbridge, M.D., a board certified orthopedic and 
 
         hand surgeon, initially saw claimant on November 16,,1984.  He 
 
         then noted that claimant had a slight dorsal tilt of the distal 
 
         radius with evidence of a compression fracture extending into the 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   3
 
         
 
         
 
         joint.  The doctor noted that claimant had some limitation of 
 
         motion of his neck but no upper extremity numbness and had 
 
         headaches which the doctor believed very likely were due to the 
 
         blow on the head and to his neck injury.  AP, lateral, obliques 
 
         and odontoid views of his cervical spine showed no definite 
 
         fractures of his neck though claimant continued to have neck 
 
         pain.  The doctor initiated physical therapy for the neck 
 
         consisting of traction, heat, and massage through January 29, 
 
         1985.  On May 10, 1985, Dr. Delbridge noted that claimant was 
 
         recovering nicely except that he continued to have headaches and 
 
         nausea albeit a CT scan of his head was negative.  Dr. Delbridge 
 
         suggested neurological consultation and on May 31, 1985 referred 
 
         claimant to James P. Worrell, M.D., a board certified 
 
         neurologist.
 
         
 
              After initially examining claimant, Dr. Worrell noted on 
 
         June 12, 1985 that claimant reported that since his injury he 
 
         persisted in having headaches and nausea and just did not feel 
 
         well.  The headache was reported as involving both sides of the 
 
         head and temples and the back of the head as well and as of 
 
         varying severity although present most of the time.  Claimant was 
 
         reported as "aggravated" by sunlight, exertion, heat, and 
 
         straining, and as having headache with nausea and light 
 
         headedness.  Claimant was irritable and short tempered since the 
 
         .injury and not as sharp as prior to the injury.  Claimant's wife 
 
         had noted a personality change in that the couple fought more.  
 
         Claimant's sex drive was down; he had no energy; and was more 
 
         forgetful.  Claimant's sense of smell was reported as possibly 
 
         somewhat reduced.  Claimant had had no seizures.  Coordination 
 
         testing was quite normal with good associated movements noted.  
 
         Dr. Worrell stated that claimant's symptoms of irritability, 
 
         personality change, lack of concentration and drive could be 
 
         construed as suggesting some type of frontal head injury with a 
 
         partial frontal brain syndrome.  Dr. Worrell prescribed 
 
         Imipramine.  The doctor suggested that an EEG and psychometric 
 
         evaluation be considered.  Claimant was again seen on July 15, 
 
         1985 with like symptoms.  His EEG was normal.  Dr. Worrell 
 
         recommended an exercise program to try to stimulate his 
 
         endogenous endorphins.
 
         
 
              Claimant testified that he had personality changes following 
 
         his injury and that he was impatient with his family, lost his 
 
         temper easily, and had a decrease in energy level and could not 
 
         concentrate.  He reported that he continues to have frequent back 
 
         and neck stiffness following work and that he has headaches and 
 
         nausea albeit these are not as frequent as early on after his 
 
         injury.  Claimant testified that he had thought that the 
 
         Imipramine that Dr. Worrell prescribed had made his lack of 
 
         energy and drive worse and that he had feared the medication 
 
         could be addicting.  He indicated that he called Dr. Worrell on 
 
         the phone and discussed the matter with him angerily and 
 
         subsequently neither continued the medication nor continued 
 
         treatment with Dr. Worrell.  The advised psychometric testing was 
 
         never undertaken.  Claimant stated that such bouts of anger were 
 
         not characteristic of his preinjury behavior.
 
         
 
              On October 25, 1985, Dr. Worrell reported that he had last 
 
         seen claimant in July [1985].  Claimant subsequently telephoned 
 
         the doctor because claimant was upset with his evaluation and the 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   4
 
         
 
         
 
         Imipramine prescribed.  The doctor opined that this was a part of 
 
         claimant's problem in that his personality had changed and he had 
 
         difficulty getting along with people.  He opined that claimant 
 
         would be able to return to some type of supervised functional 
 
         employment.  He noted that claimant had no focal or neurological 
 
         deficit involving the motor system, but deficits mainly in his 
 
         ability to cooperate and deal with people and a lack of energy 
 
         and enthusiasm.  On July 7, 1986, Dr. Worrell opined claimant had 
 
         permanent impairment of ten to fifteen percent of the body as a 
 
         whole considering his mental deficits.
 
         
 
              In his deposition, Dr. Worrell described the frontal lobe of 
 
         the brain as controlling personality and behavior, interest and 
 
         drive (in life and jobs) ability to concentrate and attitude 
 
         toward and ability go get along with people and [sic] the 
 
         person's environment.  He characterized frontal lobe syndrome as 
 
         a personality disorder brought on by organic changes in frontal 
 
         lobe.  The doctor opined that in July 1985 claimant could work 
 
         under modest supervision where someone monitored his activities 
 
         explaining that persons with frontal lobe syndrome have a 
 
         decreased ability to concentrate and very often cannot make the 
 
         connection from a completed task to the next task without 
 
         direction.  The doctor opined that chronic headaches over an 
 
         extended time are common after head injuries and that claimant's 
 
         headaches and nausea are part of a post injury problem not 
 
         specifically related to the frontal lobe.  The doctor opined that 
 
         after reviewing selected portions of claimant's deposition, he 
 
         felt claimant's frontal brain syndrome had improved significantly 
 
         such that claimant now had no impairment on his ability to earn a 
 
         living.  The doctor stated he based that opinion on claimant's 
 
         stated ability to find and work at a job which he seemed to 
 
         enjoy.
 
         
 
         
 
              On January 22, 1986, Dr. Delbridge stated that claimant had 
 
         good flexion, good dorsiflexion of the left wrist but limitation 
 
         of supination by fifteen degrees, a two percent impairment of the 
 
         upper extremity; pronation of thirty degrees, a loss of fifty 
 
         degrees, an eight percent impairment of the upper extremity, and 
 
         that as a result his overall impairment of his left upper 
 
         extremity was ten percent.  He opined that other than claimant's 
 
         headaches, occasional feeling of nausea, and some aching in his 
 
         neck, claimant did not have appreciable permanency with regards 
 
         his neck and head injuries.  In his deposition, Dr. Delbridge 
 
         indicated that as a result of Dr. Worrell's consultation and his 
 
         own observations, he suggested claimant not climb ladders as he 
 
         might fall given his dizziness, headaches, and his nausea 
 
         symptoms.  He further opined that he believed that claimant's 
 
         head problems were also a result of his work injury.  The doctor 
 
         agreed, however, that he has not specifically asked claimant 
 
         whether claimant has had headaches before the injury.  Dr. 
 
         Delbridge agreed that claimant's left wrist was his nondominant 
 
         side, but stated that because at times the dominance of one hand 
 
         is not complete, he did not reduce the impairment rating for 
 
         nondominance even though the AMA Guides do so.
 
         
 
              Claimant is a high school graduate who spent three years in 
 
         the navy where he received eight weeks of training as a machinist 
 
         mate.  Subsequent to to his military discharge, he worked as a 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   5
 
         
 
         
 
         laborer, a truck driver, and a route salesperson before becoming 
 
         a construction union member.  He earned between $5.50 and $6.00 
 
         per hour generally in his nonconstruction jobs and earned between 
 
         $8.60 and $10.25 per hour in his construction jobs.  Claimant had 
 
         been working for Jens Olesen & Sons Construction approximately 
 
         two years when injured and was then earning  $9.00 per hour.  He 
 
         was the low boy operator but also filled in where needed on 
 
         general laboring and concrete work.  Claimant characterized 
 
         himself as in excellent physical condition prior to his injury 
 
         and having no wrist, neck or back problems.  He indicated that he 
 
         did not return to construction work because he could not use air 
 
         tools, could not lift as much, could not put as much weight on 
 
         his wrist, and was sore on side to side motion.  Claimant moved 
 
         his family to Arizona in December 1985.  He reported that prior 
 
         to doing so, he had talked to persons about the possibility of 
 
         finding other work in Iowa and believed there were no 
 
         opportunities here.  He testified that he had a "motivation 
 
         problem" when he initially arrived in Arizona and that he 
 
         attempted to start looking for work but was unable to "get going" 
 
         until he finally did so at his wife's insistence.  Claimant 
 
         reported that he had no difficulties with motivation prior to his 
 
         injury.  He reported that he had difficulty finding a job within 
 
         his limited training.  In March 1986, claimant began work 
 
         preparing road sealer machines for painting at which he earned 
 
         $5.25 per hour.  Claimant reported that he could handle the 
 
         minimal physical demands of this position but for his headaches 
 
         which at times were brought on by the heat, overexertion, and 
 
         bending forward required on the job.
 
         
 
              Claimant left that position to become a salesperson in the 
 
         buildings materials department of a building supply store.  
 
         Claimant remains working there.  His salary has increased from 
 
         $6.50 per hour when he began work in Summer 1986 to $7.15 per 
 
         hour at time of hearing.  Claimant anticipated an increase to 
 
         $7.50 per hour following his review.  Claimant reported that the 
 
         job holds a possibility of advancing to department manager and 
 
         then store assistant manager with subsequent increases in hourly 
 
         wage.  He eventually would need to increase his hours to more 
 
         than the forty hours he is currently working per week.  He is 
 
         uncertain he could handle those hours.  Claimant characterized 
 
         himself as not unhappy with his job but simply wishing he could 
 
         do better.  He reported he had applied for other sales jobs in 
 
         like fields.  Claimant holds an Arizona class 4 chauffeurs 
 
         license and had applied for jobs as a forklift operator and other 
 
         sales work which he stated would pay between $11.00 and $12.00 
 
         per hour, but had not been hired.
 
         
 
              Claimant expressed his belief that because of his good 
 
         background in all fields of construction but for his injury, he 
 
         would eventually have become a foreman or supervisor receiving 
 
         pay of approximately $12 to $15 per hour.
 
         
 
              Claimant reported that he continues to have a problem with 
 
         becoming angry and has "blown up" at work approximately a half a 
 
         dozen times such that his supervisors have had to talk to him 
 
         about the problem.  He reported that he continues to have 
 
         headaches but that he generally is able to leave the floor and go 
 
         to the break room when these become severe.
 
         
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   6
 
         
 
         
 
              Claimant reported that he no longer has the energy or 
 
         stamina to play softball, basketball, football or bicycle as he 
 
         had prior to his injury.  He reported that Dr. Delbridge advised 
 
         him not to play sports involving his left wrist.
 
         
 
              Kathleen Bawek, claimant's wife of five years, substantiated 
 
         claimant's testimony regarding changes in his personality and 
 
         physical condition following his work injury.  She indicated that 
 
         claimant has headaches more frequently after a busy stressful 
 
         workday.  Mrs. Bawek works as a grocery cashier approximately 
 
         fifteen to twenty-three hours per week.  Claimant cares for the 
 
         couple's children, ages four and eight, when his work schedule is 
 
         such that he is off work while his wife is working.
 
         
 
              Claimant's appearance throughout hearing was very flat; his 
 
         voice was a monotone; and he generally appeared to lack 
 
         enthusiasm and energy.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 5, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   7
 
         
 
         
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Agency may disregard unconroverted medical testimony; it may 
 
         do so only after stating substantial reasons for not deferring to 
 
         the evidence, however.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974).
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner but must be weighed with 
 
         other facts and circumstances.  Musselman, 261 Iowa 352, 360, 154 
 
         N.W.2d 128, 133.
 
         
 
              Permanent means for an indefinite and undeterminable period. 
 
          Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 
 
         Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Garen v. New 
 
         England Mutual Life Insurance Company, 218 Iowa 1094, 1104, 254 
 
         N.W. 287, 292 (1934).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
         
 
              Our initial concern is whether a causal connection exists 
 
         between claimant's injury and his asserted disability.  The 
 
         parties stipulate claimant has a [causally related] left wrist 
 
         injury.  They dispute whether claimant has a head injury causally 
 
         related to his work injury.  The asserted head problem consists 
 
         of chronic headache and nausea and partial frontal brain 
 
         syndrome.  Both Dr. Delbridge and Dr. Worrell believe the 
 
         headache and nausea are post injury sequalae not uncommon 
 
         following head trauma.  That characterization is accepted and 
 
         provides the necessary expert opinion establishing causal 
 
         relationship as regards those problems.  Dr. Worrell, after 
 
         examining claimant, initially felt claimant's personality changes 
 
         and related symptoms following his injury were suggestive of 
 
         partial frontal lobe syndrome.  In July 1986, he opined 
 
         claimant's mental deficits produced a permanent partial 
 
         impairment often percent of the body as a whole.  Those remarks 
 
         of the doctor when coupled with his examination notes and 
 
         claimant and his wife's testimony at hearing are sufficient to 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   8
 
         
 
         
 
         establish that claimant's work injury produced at least a 
 
         temporary partial frontal brain syndrome.  Dr. Worrell testified 
 
         in his deposition, however, that after reading portions of 
 
         claimant's deposition, but not actually reexamining claimant, he 
 
         believed claimant's syndrome had improved significantly and that 
 
         claimant now has no impairment of his ability to handle 
 
         employment on account of that syndrome.  We reject the doctor's 
 
         latter opinion, however.  The doctor did not personally reexamine 
 
         claimant.  Claimant's effect, vocal tone, and the substance of 
 
         his testimony at hearing were consistent with continuing 
 
         behavioral difficulties such as the doctor earlier had associated 
 
         with frontal brain syndrome.  Furthermore, the doctor's December 
 
         1986 opinion merely stated that claimant was no longer impaired 
 
         as to his ability to earn a living.  While we do not reach the 
 
         issue of whether the doctor's opinion invades the province of the 
 
         commissioner by improperly assessing industrial disability and 
 
         not functional impairment, we believe the doctor's opinion is 
 
         based on an inaccurate medical history and fails for that reason.  
 
         Claimant testified at hearing that he continues to have problems 
 
         with anger and that he has lost his temper a number of times at 
 
         work such that his supervisors have spoken to him concerning the 
 
         problem.  That fact was not elicited in claimant's deposition 
 
         testimony which Dr. Worrell reviewed.  Sudden bouts of temper 
 
         sufficient to raise concern among an employee's supervisors may 
 
         well represent a serious impairment of an employee's ability to 
 
         earn a living.  Claimant is found to have continuing partial 
 
         frontal brain syndrome symptoms sufficient to impair his ability 
 
         to earn a living.  While perhaps decreasing in severity, these 
 
         have continued since his injury and the period at which they will 
 
         terminate is indeterminable.  Claimant's partial frontal brain 
 
         syndrome is found to be a permanent condition, which like his 
 
         headaches and nausea, is causally related to his work injury. and 
 
         extends his injury to the body as a whole.  Dr. Worrell opined 
 
         claimant's frontal brain syndrome had improved significantly.  
 
         Claimant was able to motivate himself at his wife's behest to 
 
         seek and obtain employment.  Claimant's job requires him to 
 
         interact with individuals and to do some inventory and other 
 
         mathematical calculations.  He has been able to secure a wage 
 
         increase since beginning this employment.  These facts suggest 
 
         claimant's syndrome symptoms have improved although still 
 
         existing.  For those reasons, we believe claimant's permanent 
 
         partial impairment from the syndrome more nearly approximates the 
 
         lower range Dr. Worrell suggested in July 1985.  Claimant is 
 
         found to have a ten percent permanent partial impairment of the 
 
         body as a whole related to his partial frontal brain syndrome.  
 
         Dr. Delbridge's opinion of ten percent permanent partial 
 
         impairment of the upper extremity on account of claimant's wrist 
 
         injury is accepted per the parties' stipulation and as better 
 
         supported by the evidence overall than is Dr. Cameron's opinion 
 
         regarding the wrist permanency.  A ten percent impairment of the 
 
         upper extremity equals six percent permanent partial impairment 
 
         of the body as a whole under the AMA Guides.  A six percent body 
 
         as a whole impairment and a ten percent body as a whole 
 
         impairment equal a 15 percent body as a whole impairment under 
 
         the AMA Guides combined values chart.  Additionally, claimant has 
 
         impairment not previously assessed on account of his injury 
 
         related chronic headaches and nausea.  These, with his 
 
         numerically assessed permanencies, are such that claimant's 
 
         overall permanent partial impairment can be characterized as 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page   9
 
         
 
         
 
         moderate to mildly severe.
 
         
 
              Having already considered the extent of claimant's permanent 
 
         partial impairment we now reach the question of the nature and 
 
         extent of his disability.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d. 251, 
 
         257 (1963).
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181.
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  Id.
 
         
 
              Claimant is a younger worker and a high school graduate.  
 
         His experience is primarily as a heavy laborer and equipment 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page  10
 
         
 
         
 
         operator in the construction industry.  Claimant's wrist 
 
         condition and, to a lesser extent, his chronic headache and 
 
         nausea preclude his returning to those fields.  Claimant has 
 
         transferable skills in that he has been able.to use his knowledge 
 
         of building materials to obtain his current position as a 
 
         building materials salesperson.  At time of hearing, claimant 
 
         appears to be having some success at that position and had 
 
         obtained a raise.  His current salary, even if he were to receive 
 
         the further raise he anticipated at hearing, still lags behind 
 
         his salary when injured, however.  Further, claimant's testimony 
 
         indicated that his partial frontal brain syndrome is causing him 
 
         difficulties with the interpersonal relations required in his 
 
         sales position.  Those difficulties, were they to continue, could 
 
         seriously jeopardize claimant's ability to earn a livelihood.  
 
         They could well prevent him from advancing further with his 
 
         present company; they could even result in his dismissal by his 
 
         present employer. (The latter possibly is more remote given 
 
         claimant's past favorable employment reviews.  Unfortunately, we 
 
         are not aware of whether reviews occurred before or after 
 
         claimant's episodes of anger at work.) Claimant's motivation to 
 
         work is good given the effects of his partial frontal brain 
 
         syndrome.  He has accepted his situation and appears genuinely 
 
         interested in mastering the new  skills required 
 
         
 
         in his current position.  If his brain syndrome difficulties do 
 
         not create greater problems for him, we anticipate he will at 
 
         least be able to handle his current employment.  We find the 
 
         possibility that he will advance to supervisory roles overall too 
 
         speculative to consider but note that claimant will generally be 
 
         competing for managerial positions with individuals not having 
 
         partial frontal brain syndrome.  We find that claimant has 
 
         sustained a 25 percent loss of earning capacity based on his 
 
         present circumstances.  Should claimant's job situation change or 
 
         should his partial brain syndrome change this finding, of course, 
 
         would be ripe for review-reopening.
 
         
 
              Defendants contend claimant is entitled to healing period 
 
         benefits only through November 27, 1985; claimant until his work 
 
         return in March 1986.  Little evidence actually supporting either 
 
         position was presented at hearing.  Healing period ends upon a 
 
         return to work, as return to substantially similar work or at the 
 
         point of maximum medical recovery.  Claimant has not returned to 
 
         work or returned to substantially similar work.  It is difficult 
 
         to assess medical recovery from claimant's partial brain 
 
         syndrome.  We believe that the ability to acquire and sustain 
 
         employment beyond the supervised employment Dr. Worrell advised 
 
         in July 1985 is evidence of a return to more normal functioning 
 
         despite that condition's continuing existence.  We adopt 
 
         claimant's position as to termination of claimant's healing 
 
         period.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on October 5, 1984 when he fell from the 
 
         top rung of an eight foot stepladder onto a concrete floor 
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page  11
 
         
 
         
 
         hitting his head and wrist on the floor.
 
         
 
              Claimant sustained a two inch laceration above the left 
 
         eyebrow and minor abrasions to the middle forehead.
 
         
 
              Claimant sustained a commuted Colle's fracture of the 
 
         articular surface of the radius and ulnar stylois tip of the left 
 
         wrist.
 
         
 
              Claimant experienced stiffness and loss of motion in the 
 
         neck as well as headache and nausea.
 
         
 
              Claimant's wrist was cast.
 
         
 
              Claimant underwent physical therapy for his wrist and neck.
 
         
 
              Claimant continues to have weakness and lost range of motion 
 
         in his wrist.  Claimant has intermittent neck stiffness and 
 
         chronic headache and nausea.
 
         
 
              Claimant experienced symptoms of irritability, personality 
 
         change, lack of concentration, forgetfulness, and loss of energy 
 
         and drive following his injury.
 
         
 
              Claimant has a moderate to mildly severe permanent partial 
 
         impairment from his wrist condition and his headache and nausea, 
 
         and from a partial frontal brain syndrome as a result of his 
 
         injury.
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page  12
 
         
 
         
 
         
 
              Claimant is 32 years old and a high school graduate.
 
         
 
              Claimant's prior work experience is largely in the 
 
         construction trades.
 
         
 
              Claimant cannot return to construction work on account of 
 
         his work injury.  At his wife's insistence, claimant was able to 
 
         seek and find employment in March 1986.
 
         
 
              Claimant has transferable skills which he applies in his 
 
         present position as a building supplies salesperson.
 
         
 
              Claimant has bouts of anger as a result of his partial 
 
         frontal brain syndrome and has received a number of reprimands 
 
         from work supervisors after these have occurred at work.
 
         
 
              Claimant's partial brain syndrome could affect his continued 
 
         ability to function in his current employment.
 
         
 
              Claimant is well motivated to work given the effects of his 
 
         partial frontal brain syndrome.
 
         
 
              Claimant has a 25 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that his October 5, 1984 injury is 
 
         the cause of the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his October 5, 1984 injury of twenty-five percent 
 
         (25%).
 
         
 
              Claimant is entitled to further healing period benefits from 
 
         November 28, 1985 to the date he actually returned to work in 
 
         March 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for one hundred twenty-five (125) weeks at the rate of 
 
         two hundred thirty-two and 52/100 dollars ($232.52) with those 
 
         payments to commence on the date he actually returned to work in 
 
         March 1986.
 
         
 
              Defendants pay claimant additional healing period benefits 
 
         at the rate of two hundred thirty-two and 52/100 dollars 
 
         ($232.52) from November 28, 1985 to the date he actually returned 
 
         to work in March 1986.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 

 
         
 
         
 
         
 
         BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO.
 
         Page  13
 
         
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 21st day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. John S. Pieters
 
         Attorney at Law
 
         2307 Falls Avenue, Suite 1
 
         Waterloo, Iowa 50701
 
         
 
         Mr. John M. Wharton
 
         Attorney at Law
 
         Suite 300, Fleming Bldg.
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                   1108; 1803.1; 2204
 
                                                   Filed 1-21-87
 
                                                   Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         STEVEN D. BAWEK,
 
         
 
              Claimant,
 
         
 
         VS.                                       File No. 776636
 
         
 
         JENS OLESEN & SONS
 
         CONSTRUCTION CO.,                      A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108; 1803.1; 2204
 
         
 
              Claimant with stipulated wrist injury established causal 
 
         relationship between work injury in which he fell from top of 
 
         stepladder onto concrete floor and partial brain syndrome, 
 
         headaches and nausea, uncontroverted medical testimony that 
 
         claimant no longer was permanently impaired as a result of 
 
         partial frontal brain syndrome rejected.  Doctor's opinion based 
 
         on reading parts of claimant's deposition only and then 
 
         concluding claimant could sustain employment.  Claimant's affect 
 
         at hearing was consistent with continuing partial frontal brain 
 
         syndrome symptoms.  Claimant testified he had episodes of anger 
 
         at work for which he had been reprimanded.  Twenty-five percent 
 
         permanent partial disability awarded.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CAROLYN DEAN,
 
         
 
              Claimant,
 
                                                File No.  776649
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         ST. JOSEPH MERCY HOSPITAL,
 
                                                D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Carolyn Dean 
 
         against her former employer, St. Joseph Mercy Hospital.
 
         
 
              The case was heard and fully submitted on January 6, 1988 at 
 
         Mason City, Iowa.  The record in this proceeding consists of 
 
         testimony from Carolyn Dean, Maxine Miller, Wendy Hegtvedt, 
 
         Stella Jensen, Bil Cooper and Roger Marquardt.  The record also 
 
         contains claimant's exhibits 1 through 44 and defendant's 
 
         exhibits A through F.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for  determination are 
 
         the applicable rate of compensation; the duration of claimant's 
 
         entitlement to compensation for healing period; and, the extent 
 
         of industrial disability that the claimant sustained as a result 
 
         of the injuries which arose out of and in the course of her 
 
         employment on September 27, 1984.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision. conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Carolyn Dean is 38 years of age. she is married, but is 
 
         presently separated from her husband.  She has a teenage son who 
 
         resides with her.
 
         
 
              Carolyn Dean testified that she dropped out of high school 
 
         half way through the eleventh grade and has only one test 
 
         remaining in order to complete her GED.  At the present time, she 
 
         operates a licensed day care center in her home which she stated 
 
         provides her with an income that varies from $90-$150 per week.  
 
         Claimant testified that she enjoys performing child care services 
 
         and plans to continue performing that type of work indefinitely. 
 
          Claimant testified that, however, because of the problems with 
 
         her left arm and shoulder, she restricts the age of children for 
 
         whom she provides care to those who are at least two years of 
 
         age.
 

 
         
 
              Claimant's work history includes work as a waitress, 
 
         bartender, cashier, pizza maker, housekeeper and the child care 
 
         which she presently performs.
 
         
 
              Carolyn Dean has been diabetic since her youth and has 
 
         experienced a number of prior and subsequent health problems.  
 
         Those conditions which are deemed to be most remarkable include 
 
         fractures of her left clavicle, left radius and injury to her 
 
         left elbow that occurred in July, 1984 at the hands of her 
 
         husband.  Claimant also fractured her right wrist in a fall 
 
         that occurred in March, 1985.
 
         
 
              Claimant commenced her employment with St. Joseph Mercy 
 
         Hospital as a part-time housekeeper on March 10, 1980.  She 
 
         acquired full-time status one to one and one-half years later.  
 
         Claimant testified that the work of a housekeeper involves some 
 
         light work, some medium work and some heavy work.  She felt 
 
         that she would be unable to perform the job in her current 
 
         condition because she is unable to move and use her left arm as 
 
         she had done prior to the injury.  Claimant stated that the 
 
         work exceeds the restrictions recommended by Sterling J. 
 
         Laaveg, M.D.
 
         
 
              Claimant testified that, on September 27, 1984, she had 
 
         stripped a bed in a patient room.  She stated that, while 
 
         flipping back the mattress, she felt a pop or crack in her 
 
         shoulder, that it started to ache and throb and that her hand 
 
         and finger went numb.  Claimant reported the incident to her 
 
         supervisor and an incident report was completed (exhibit 43).
 
         
 
              Claimant initially received her medical treatment under 
 
         the direction of Wayne Janda, M.D., an orthopaedic surgeon. 
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   3
 
         
 
         conservative treatment in the nature of medication and 
 
         physiotherapy were employed (exhibit 3, pages 2-7; exhibit 4).
 
         
 
              In January, 1985, claimant elected to receive treatment 
 
         from Sterling J. Laaveg, M.D.  Additional conservative 
 
         treatment was employed until June 6, 1985 when claimant 
 
         underwent arthroscopic surgery on her left shoulder.  The 
 
         glenoid labrum of the shoulder was found to be irregular, 
 
         loose, floppy and to have small degenerative tears which were 
 
         debrided.  (exhibits 5 and 12).  On December 4, 1985, Dr. 
 
         Laaveg reported that claimant had reached maximum healing 
 
         concerning her left shoulder, but that she had residual pain, 
 
         discomfort and limitation of motion.  Dr. Laaveg assigned an 
 
         impairment rating of twelve percent of the left shoulder and 
 
         upper extremity which he equated to a seven percent impairment 
 
         of the whole person (exhibit 18).  Dr. Laaveg assigned activity 
 
         restrictions for claimant's left arm which included avoidance 
 
         of all lifting of weights greater than 20 pounds and of 
 
         reaching above shoulder level.  He indicated that she could 
 
         occasionally lift weights up to 20 pounds, push, pull, climb, 
 
         rotate her head and work at heights.  He imposed less 
 
         restrictions for other activities (exhibit 17).
 
         
 
              Claimant was provided with services from Bil Cooper, a job 
 
         placement specialist.  Through Cooper's efforts, claimant was 
 
         placed in a position as a part-time cashier at a Hy-Vee store 
 
         where she earned $3.40 per hour and worked as much as 30 hours 
 
         per week.  Claimant apparently performed the job to the 
 
         satisfaction of the employer, but aggravated her shoulder and 
 
         discontinued the employment.  Claimant has declined to apply 
 
         for a bartender job at a local restaurant and lounge where she 
 
         had previously been employed due to influence from her husband.  
 
         Claimant has applied for some other positions, but was not 
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   4
 
         
 
         offered employment.
 
         
 
              Roger Marquardt, a certified vocational rehabilitation 
 
         consultant, evaluated claimant and determined that the Hy-Vee 
 
         job was an appropriate position for the claimant.  
 
         Additionally, Marquardt indicated that claimant could perform a 
 
         number of other occupations which fall in the category of 
 
         unskilled or select semi-skilled employment which is either 
 
         light or sedentary in exertion requirements.  Marquardt 
 
         indicated that such jobs do exist which permit the primary use 
 
         of the right dominant arm.  Positions Marquardt listed were in 
 
         the nature of cashier, clerk and general retail sales.  
 
         Marquardt indicated that median wages for such positions were 
 
         in the range of $3.75 per hour to $6.00 per hour, but that they 
 
         varied depending upon the position and the skills involved.  
 
         From the data Marquardt provided, it would appear that the wage 
 
         ranges in the Mason City, Iowa area for most of the clerical, 
 
         cashier and general sales positions range from approximately 
 
         $3.75 per hour to $4.00 per hour.  The only exception was a 
 
         bank teller position which Marquardt felt would pay 
 
         approximately $6.00 per hour.
 
         
 
              Marquardt testified that there is a stable job market for 
 
         persons such as claimant who are, for all practical purposes, 
 
         one-armed workers.
 
         
 
              Marquardt also indicated that many of the jobs which 
 
         claimant could obtain would be part-time, particularly at entry 
 
         level and that the entry level earnings would be lower than 
 
         median earnings.  Marquardt made no specific search in the 
 
         Mason City area for positions that would actually be available 
 
         to a worker who had full use of only one arm.
 
         
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   5
 
         
 
              Child care is a career field which appears to be 
 
         appropriate according to both Cooper and Marquardt.
 
         
 
              Claimant's physical impairment has been evaluated by 
 
         Sinesio Misol, M.D., who found claimant to have a twelve 
 
         percent impairment of the body as a whole (exhibit 29).  
 
         Claimant was also evaluated by John R. Walker, M.D., who found 
 
         claimant to have a 40% impairment of the body as a whole 
 
         (exhibit 21).
 
         
 
              Claimant has continued to have problems with her shoulder. 
 
          She was hospitalized for a shoulder manipulation and 
 
         injections on March 19, 1987 (exhibit 25).  The hospitalization 
 
         caused her to miss one week from her child care activities.  
 
         Shortly prior to hearing, Dr. Laaveg modified his restrictions 
 
         to provide that claimant should not lift more than five pounds 
 
         with her left arm and that she should not perform any job which 
 
         involved repetitive activity of her left arm or upper extremity 
 
         (exhibit 38).  Claimant continues to have pain in her left 
 
         upper arm, shoulder, neck and a loss of strength and range of 
 
         motion.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The.issue of rate of compensation falls under Iowa Code 
 
         section 85.36.  The first unnumbered paragraph states that:
 
         
 
              Weekly earnings means gross salary, wages, or earnings 
 
              of an employee to which such employee would have been 
 
              entitled had the employee worked the customary hours 
 
              for the full pay period in which the employee was 
 
              injured ....
 
         
 
              Stella Jensen, claimant's supervisor, testified that 
 
         claimant would normally work 40 hours per week.  Claimant 
 
         testified that, at the time of injury, she was earning $4.84 per 
 
         hour.  Exhibit C, at page 2, shows claimant's work attendance 
 
         while exhibit D shows her gross wages.  It is noted that claimant 
 
         was paid biweekly and that the week for which earnings were paid 
 
         appears to have run from Monday through Sunday.  A review of the 
 
         attendance report appears to indicate that a normal work week 
 
         averaged five work days, but that in some weeks claimant worked 
 
         six days and had one day off while in other, she worked only four 
 
         days and had three days off.  It is therefore found that 
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   6
 
         
 
         claimant's normal work week was scheduled for 80 hours per week.
 
         
 
              Claimant's rate of pay is not, however, apparent from the 
 
         records in evidence.  A rate of $4.84 per hour over a period of 
 
         two work weeks, 80 hours, should total  $387.20.  Claimant's 
 
         gross wages vary but appear to fall for the most part within a 
 
         range of $352-$366 per week.  There are a few weeks which are 
 
         both higher and lower than the range wherein most seem to fall.  
 
         There are few instances where the gross wages for any two-week 
 
         period are duplicated.  Apparently, claimant did not work 
 
         precisely the same number of hours each pay period.  It has been 
 
         held that weeks which are short due to vacation, sickness or 
 
         other unpaid absence should not be used in computing the rate of 
 
         compensation if such differ from the customary hours for the full 
 
         pay period.  Lewis v. Aalf's Manufacturing Co., I Iowa Industrial 
 
         Commissioner Report, 206, 207 (App.  Decn. 1980); Schotanus v. 
 
         Command Hydraulics, Inc., I Iowa Industrial Commissioner Report, 
 
         294, 298-99 (1981).  A review of claimant's attendance report and 
 
         comparison with the gross wages shows it difficult to determine 
 
         which weeks are truly representative.  In early 1984, claimant 
 
         had been off work for an extended period of time.  Upon review of 
 
         exhibits C and D it is determined that the wages paid on 
 
         September 26, 1984, September 12, 1984, August 1, 1984, and July 
 
         18, 1984 are fairly representative of claimant's actual work and 
 
         earnings.  The period comprises eight weeks and shows total gross 
 
         wages of $1,463.29 or $182.91 per week.  When applied to the 
 
         appropriate benefit schedule considering claimant to be married 
 
         with three exemptions, the rate of compensation is therefore 
 
         $125.72 per week.
 
         
 
              Claimant seeks compensation for healing period under the 
 
         provisions of Iowa Code section 85.34(l).  The healing period 
 
         commences on the date of injury and runs until the employee has 
 
         returned to work or it is medically indicated that significant 
 
         improvement from the injury is not anticipated or until the 
 
         employee is medically capable of returning to employment 
 
         substantially similar to that in which the employee was engaged 
 
         at the time of injury, whichever occurs first.  Claimant has not 
 
         returned to work and it appears that claimant never will become 
 
         medically capable of engaging in employment substantially similar 
 
         to that in which she was engaged at the time of injury.
 
         
 
              Claimant was paid 61 4/7 weeks of compensation for healing 
 
         period running from the date of injury until December 2, 1985 
 
         when Dr. Laaveg released her to return to work and provided his 
 
         initial rating of permanent partial disability (exhibits 5 and 
 
         18).  It should be noted that the rate at which she was paid was 
 
         underpaid by the amount of $8.61 per week.
 
         
 
              Claimant then entered into her child care business shortly 
 
         after her release from Dr. Laaveg.  She continued to operate that 
 
         business until the time she was hospitalized for shoulder 
 
         manipulation.  Claimant testified that shoulder manipulation 
 
         caused her to miss one week from her self-employed business of 
 
         child care.  Accordingly, claimant is entitled to one additional 
 
         week of compensation for healing period payable at the rate of 
 
         $125.72 per week commencing March 19, 1987.  It is understood 
 
         that the claimant aggravated her shoulder while performing 
 
         part-time work at Hy-Vee.  When an industrial injury leaves an 
 
         individual with a weakness that subjects them to further risk of 
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   7
 
         
 
         injury or aggravation, those facts are to be considered in 
 
         determining the degree of permanent disability.  They do not make 
 
         every subsequent problem that the individual has with the injured 
 
         body part something which is proximately caused by the original 
 
         injury to the extent that additional healing period or temporary 
 
         total disability compensation is always payable. further, the 
 
         aggravation did not interrupt her child care business and 
 
         claimant was not totally disabled.
 
         
 
              Claimant's injury is to her shoulder.  It is not limited to 
 
         her arm.  The physical abnormalities found to exist are situated 
 
         on the body side of the shoulder joint.  Accordingly, the 
 
         disability should be evaluated as a disability to the body as a 
 
         whole.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935 as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County , 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant is not a high school graduate.  She does not have a 
 
         GED, although it appears likely that she will be able to obtain 
 
         her GED if she makes a bona fide effort.  At hearing, claimant 
 
         appeared to be of average intelligence and emotionally stable.  
 
         She appeared to be somewhat unduly influenced by her husband.  
 
         Nevertheless, the physicians have indicated that she cannot 
 
         resume the type of employment she performed with St. Joseph Mercy 
 
         Hospital.  Her physical restrictions make it unlikely that she 
 
         can perform many of the occupations which she had previously 
 
         performed.  At the time of injury, claimant was self-employed, 
 
         full-time, earning somewhere in the range of $4.75 per hour.  The 
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   8
 
         
 
         employment opportunities which have been identified by the 
 
         vocational consultants appear to provide work that is at or 
 
         slightly above the minimum wage range for entry level purposes.  
 
         Most of the jobs identified appear to be part-time employment, at 
 
         least for a considerable amount of time before the claimant could 
 
         move to full-time employment.  The injury at St. Joseph Mercy 
 
         Hospital has placed her in the position of reentering the work 
 
         force at entry level, rather than remaining at the level of 
 
         experience and seniority which she had acquired with St. Joseph 
 
         Mercy Hospital.  Claimant's current level of employment providing 
 
         child care is probably not the best level of earnings which she 
 
         could accomplish, but it is likewise not an unreasonable 
 
         occupational choice.  When all the material factors of industrial 
 
         disability are considered, it is determined that claimant has 
 
         sustained a 30% permanent partial disability as a result of the 
 
         injuries she sustained on September 27, 1984.  The compensation 
 
         is payable commencing on December 3, 1985 and should be 
 
         interrupted for the one week of healing period payable commencing 
 
         March 17, 1987.  Compensation for healing period and permanent 
 
         partial disability resulting from the same injury are not payable 
 
         simultaneously.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 27, 19.84, Carolyn Dean was employed as a 
 
         housekeeper at St. Joseph Mercy Hospital in Mason City, Iowa 
 
         earning approximately $4.75 per hour.
 
         
 
              2.  Carolyn Dean injured her left shoulder on September 27, 
 
         1984 while lifting a mattress as part of the duties of her 
 
         employment.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from the date of injury until 
 
         December 2, 1985 when Dr. Laaveg released claimant and provided a 
 
         permanent impairment rating.  It was at that time that she 
 
         reached the point that it was medically indicated that further 
 
         significant improvement from the injury was not anticipated.
 
         
 
               4.  Claimant was subsequently disabled when she was 
 
         hospitalized for medical treatment on March 17, 1987.  The 
 
         disability extended for one week.
 
         
 
              5.  The times, other than the week commencing in March, 
 
         1987, when Dr. Laaveg recommended that claimant not perform work 
 
         for the Hy-Vee store were primarily related to the activities in 
 
         which she engaged at the Hy-Vee store rather than the injury of 
 
         September 27, 1984.  The fact that the Hy-Vee employment 
 
         aggravated claimant's condition is evidence of the degree of 
 
         disability that was produced by the 1984 injury.
 
         
 
              6.  Claimant's average weekly earnings are $182.91.
 
         
 
              7.  Claimant is a credible witness with regard to her 
 
         description of her complaints and limitations.
 
         
 
              8.  The assessment of this case made by Dr. Laaveg is 
 
         adopted as correct where it conflicts with the assessments made 
 
         by other medical professionals.
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE   9
 
         
 
         
 
              9.  Claimant has sustained a 30% loss of earning capacity as 
 
         a result of the injuries she sustained on September 27,
 
         1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to her left shoulder on 
 
         September 27, 1984 arose out of and in the course of her 
 
         employment with St. Joseph Mercy Hospital.
 
         
 
              3.  The injury claimant sustained to her left shoulder on 
 
         September 27, 1984 was a proximate cause of the disability that 
 
         currently afflicts claimant with regard to her left shoulder and 
 
         left upper extremity.
 
         
 
              4.  Claimant's rate of compensation is $125.72 per week.  
 
         Where 13 recent weeks of employment earnings are not available 
 
         which show the earnings which the employee would have earned had 
 
         the employee worked the customary hours for the full pay period 
 
         in which the employee was injured as regularly required by the 
 
         employer, a lesser number of weeks may be utilized if those weeks 
 
         are fairly representative of the earnings the employee would have 
 
         been entitled to had the employee worked the customary hours for 
 
         the entire pay period in which the employee was injured.
 
         
 
              5.  Claimant's entitlement to compensation for healing 
 
         period runs from September 27, 1984 through December 2, 1985, a 
 
         period of 61 4/7 weeks.  Claimant is also entitled to one 
 
         additional weekly of compensation for healing period commencing 
 
         March 17, 1987.
 
         
 
              6.  Claimant has a 30% permanent partial disability, when 
 
         the same is evaluated industrially, which was proximately caused 
 
         by the injuries she sustained on September 27, 1984.
 
         
 
              7.  The fact of susceptibility to future injury is a factor 
 
         to be considered in determining the degree of industrial 
 
         disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant 
 
         sixty-one and four-sevenths (61 4/7) weeks of compensation for 
 
         healing period at the rate of one hundred twenty-five and 72/100 
 
         dollars ($125.72) per week commencing September 27, 1984 and one 
 
         (1 week of compensation for healing period at the rate of one 
 
         hundred twenty-five and 72/100 dollars ($125.72) per week 
 
         commencing March 17, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant one 
 
         hundred fifty (150) weeks of compensation for permanent partial 
 
         disability at the rate of one hundred twenty-five and 72/100 
 
         dollars ($125.72) per week payable commencing December 3, 1985 
 
         and interrupted by the one week of healing period which commences 
 
         March 17, 1987.
 
         
 

 
         
 
         
 
         
 
         DEAN V. ST JOSEPH MERCY HOSPITAL
 
         PAGE  10
 
         
 
              IT IS FURTHER ORDERED that defendant receive credit for all 
 
         amounts previously paid and pay any and all past due and owing 
 
         amounts in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendant file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of October, 1988.
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1802, 1803, 3001
 
                                                   Filed October 27, 1988
 
                                                   MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CAROLYN DEAN,
 
         
 
              Claimant,
 
                                               File  No. 776649
 
         
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         
 
         ST. JOSEPH MERCY HOSPITAL,
 
                                               D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1802, 1803, 3001
 
         
 
              The claimant had been off work for a substantial period of 
 
         time prior to the injury due to a nonoccupational illness.  She 
 
         had less than 13 weeks of work with the customary number of 
 
         hours.  It was held that the rate may be computed based upon a 
 
         lesser number of weeks than 13 when the weeks are sufficient to 
 
         show that the average weekly earnings are fairly representative 
 
         of what the claimant would have normally earned had she been 
 
         gainfully employed without absences for illness.
 
         
 
              It was held that where an injury produces permanent partial 
 
         disability, which makes the claimant susceptible to further 
 
         injury, that when additional injury occurs due primarily to some 
 
         identifiable aggravating circumstance or event, it is that 
 
         circumstance or event which is the proximate cause of the 
 
         additional period of disability, rather than the original injury.  
 
         The fact of susceptibility to future injury is a factor to be 
 
         considered in determining the degree of industrial disability.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLENN PATTERSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                     File No.  776693
 
         TAMA PACK,
 
         
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         CRAWFORD & COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              On August 24, 1986, at 1:00 p.m., the above captioned matter 
 
         came on for arbitration hearing as previously assigned by 
 
         telephone pre-hearing conference of March 31, 1988, conducted by 
 
         Deputy Industrial Commissioner, T. J. McSweeney, wherein claimant 
 
         participated on his own behalf and Dorothy L. Kelley participated 
 
         for the defendants.  The file reflects that a Hearing Assignment 
 
         Order filed April 1, 1988, was duly mailed by U. S. Postal 
 
         Service to Glenn Patterson, acting pro se, to his last known 
 
         address of Route 1, Gilman, Iowa, 50106 and to Dorothy L. Kelley, 
 
         1000 Des Moines Building, Des Moines, Iowa, 50309.
 
         
 
              At the appointed time of hearing on August 24, 1988, 
 
         defendants appeared with counsel, however, claimant failed to 
 
         appear.  A search for the claimant was made.  The undersigned 
 
         deputy industrial commissioner telephoned Mr. Patterson's 
 
         residence and place of employment without successfully reaching 
 
         the claimant.  No messages from Mr. Patterson concerning his 
 
         whereabouts were received.
 
         
 
              At 1:30 p.m., a Motion to Dismiss for failure to appear and 
 
         for Default Judgment was made by the defendants because of 
 
         claimant's failure to appear and present evidence to carry his 
 
         burden of proof that his injury arose out of and in the course of 
 
         employment and collateral issues.
 
         
 
              Claimant has the burden of 1)roving by a preponderance of 
 
         the evidence that he received an injury on March 28, 1984 which 
 
         arose out of and in the course of his employment.  McDowell 
 
         v.Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              It is found that claimant has failed to carry his burden of 
 
         proof.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 

 
         
 
         
 
         
 
         PATTERSON V. TAMA PACK
 
         PAGE   2
 
         
 
         
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 1st day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Glenn Patterson
 
         Route 1
 
         Gilman, Iowa 50106
 
         CERTIFIED AND REGULAR MAIL
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1402.20, 1402.30
 
                                              Filed September 1, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLENN PATTERSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 776693
 
         TAMA PACK,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         CRAWFORD & COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20, 1402.30
 
         
 
              Claimant failed to carry his burden of establishing a 
 
         compensable injury due to his failure to appear to present 
 
         evidence in support of his allegation of an injury arising out of 
 
         and in the course of his employment.  Claimant take nothing from 
 
         this proceeding.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            NANCY PATMAN,	      :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 776700
 
            GLENWOOD STATE HOSPITAL,  :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
		                      :
 
            STATE OF IOWA, 	      :
 
 		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 27, 1990, is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis.
 
            On September 22, 1986, the parties entered into an agreement 
 
            for settlement.  The agreement for settlement was based upon 
 
            claimant's physical condition at the time of the settlement.  
 
            James P. O'Hara, M.D., claimant's treating physician opined 
 
            that claimant could anticipate the development of arthritis 
 
            as a result of her right ankle injury.  Basing an award on 
 
            future possible developments of claimant's present condition 
 
            would be engaging in speculation.  Chapter 85, Code of Iowa, 
 
            contemplates a review-reopening proceeding should claimant's 
 
            condition deteriorate in the future.  Schmitz v. Ahrens 
 
            Construction Company, Appeal Decision, June 2, 1989, file 
 
            number 834034.  
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. Ronald Pogge
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            NANCY PATMAN,	      :
 
                      		      :
 
                 Claimant,   	      :
 
                     		      :
 
            		vs. 	      :
 
                     		      :       File No. 776700
 
            GLENWOOD STATE HOSPITAL,  :
 
		                      :         A P P E A L
 
                 Employer, 	      :
 
                      		      :       D E C I S I O N
 
            	and   		      :
 
                      		      :
 
            	STATE OF IOWA,        :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed June 27, 1990, 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NANCY PATMAN,
 
         
 
              Claimant,
 
         
 
                                                 File No. 776700
 
         VS.
 
         
 
                                                   R E V I E W -
 
         GLENWOOD STATE HOSPITAL,
 
         
 
                                                 R E 0 P E N I N G
 
              Employer,
 
         
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening from an agreement 
 
         for settlement.  The case was heard and fully submitted at 
 
         Council Bluffs, Iowa on June 5, 1990.  The record in the 
 
         proceeding consists of testimony from Nancy Patman, claimant's 
 
         exhibits 1, 2, 3a, 3b, 3c, 3d and 4, and defendants' exhibits B, 
 
         C, E and F.
 
         
 
              Claimant seeks additional compensation for permanent partial 
 
         disability for her right leg.  The issues presented for 
 
         determination are whether there has been a change of condition 
 
         sufficient to warrant reconsideration of the degree of 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Nancy Patman is a former employee of the Glenwood State 
 
         Hospital where she was a resident treatment worker.  She 
 
         fractured her right ankle while taking clients of the hospital 
 
         roller skating on September 27, 1984.  Her treating orthopaedic 
 
         surgeon was James P. O'Hara, M.D., of Omaha, Nebraska. Open 
 
         reduction and screw fixation of the right ankle was performed.  
 
         After a subsequent injury to the injury in 1985, the screws were 
 
         removed.  In a report dated January 6, 1986, Dr. O'Hara rated 
 
         claimant as having a five percent impairment of the whole person 
 
         due to the ankle injury.  He anticipated that she would develop 
 
         arthritis in the ankle because of the injury.  Claimant was also 
 
         evaluated by William R. Hamsa, Jr., M.D., another Omaha 
 
         orthopaedic surgeon.  Dr. Hamsa estimated that she had a 14
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         PATMAN v. GLENWOOD STATE HOSPITAL
 
         Page 2
 
         
 
         
 
         percent disability of the foot which was equivalent to 10 percent 
 
         of the leg which, in turn, was equivalent to 4 percent of the 
 
         whole person.  In his report, which is dated February 12, 1986, 
 
         he noted evidence of early arthritic change in the ankle.
 
         
 
              An agreement for settlement was approved on September 24, 
 
         1986 which fixed claimant's disability at 13 percent of the right 
 
         leg.  At the time of the settlement, claimant was working as a 
 
         resident treatment worker at the Glenwood Hospital.
 
         
 
              Claimant subsequently moved to Arizona where she worked for 
 
         a medical supply company.  The work required her to stand for 10 
 
         or 12 hours per day.  She sought medical treatment in the state 
 
         of Arizona and considered having the ankle fused in order to 
 
         relieve her pain complaints.  She subsequently returned to the 
 
         state of Iowa where the consensus of the physicians who have 
 
         evaluated her is that the fusion surgery should be a last resort.  
 
         She performs a job which requires her to be on her feet eight 
 
         hours per day, five days per week.  She continues to have pain in 
 
         her right ankle.  Claimant testified that the pain is worse now 
 
         than it was in 1986.  She stated that the ankle has started to 
 
         give way on occasion when she stands up after having been seated.
 
         
 
              On April 27, 1988, Dr. O'Hara reported that claimant has 
 
         post-traumatic arthritis which is related to the original injury 
 
         (exhibit 3b).  On July 11, 1989, Dr. O'Hara reported that, 
 
         because of the arthritis which has  developed, he would rate her 
 
         total impairment of the body as a whole at 10 percent (exhibit 
 
         3c).  That rating is equivalent to 25 percent impairment of the 
 
         leg (exhibit 4).
 
         
 
              On February 13, 1990, claimant was evaluated by Des Moines 
 
         orthopaedic surgeon Timothy C. Fitzgibbons, M.D.  In his report, 
 
         he states that claimant has post-traumatic degenerative arthritis 
 
         of the right ankle which was caused by the September 1984 
 
         incident.  He agreed that the major portion of the ankle joint 
 
         space was maintained and that  he was reluctant to recommend 
 
         fusion of the ankle.  He rated claimant as having at least a 15 
 
         percent permanent impairment of the right leg (exhibit C).
 
         
 
              Claimant was evaluated on June 16, 1988 by Kenneth  A. 
 
         Johnson, M.D.  Dr. Johnson felt that the joint space in the ankle 
 
         was still good and that a surgical fusion was not advisable 
 
         (exhibits B and F).
 
         
 
              On July 20, 1988, Dr. O'Hara reported that fusion was not 
 
         advisable (exhibit B, page 3; exhibit 1, page 7).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         PATMAN v. GLENWOOD STATE HOSPITAL
 
         Page 3
 
         
 
         
 
              On September 9, 1987, Thomas Bodnar, M.D., the orthopaedic 
 
         surgeon who treated claimant in the state of Arizona, reported 
 
         that the permanent  partial disability of 13 percent is accurate 
 
         for claimant's current condition and that, with a fusion, the 
 
         rating would increase to 25 percent (exhibit 1, pages 15 and 16).
 
         
 
              It is found that the 13 percent impairment rating which was 
 
         provided in 1986 represented the amount of impairment which 
 
         existed at that time.  It did not include any allowance for the 
 
         development of future arthritic changes despite the fact that the 
 
         physicians expected those changes to occur.  The ratings 
 
         currently from Drs. Fitzgibbons and O'Hara are 15 percent and 25 
 
         percent, respectively.  It is found that the current degree of 
 
         permanent impairment of claimant's right leg is 20 percent.  
 
         There is no evidence in the record wherein any of the physicians 
 
         give any indication regarding whether or not the amount of 
 
         increase which has occurred was expected.  It is found that an 
 
         increase of impairment from 13 percent to 20 percent is an 
 
         increase of 50 percent.  An increase of 50 percent is found to be 
 
         more than what would have normally been anticipated.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              In a review-reopening proceeding from an agreement for 
 
         settlement, the claimant has the burden of establishing that 
 
         there has been a substantial change of condition which was not 
 
         anticipated at the time of the original agreement.  Deaver v. 
 
         Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969). The change 
 
         must be one which was not anticipated to occur and could not have 
 
         been discovered through the exercise of reasonable diligence at 
 
         the time of the settlement.  Meyers v. Holiday Inn of Cedar 
 
         Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978); Gosek v. Garmer & 
 
         Stiles Co., 158 N.W.2d 731 (Iowa 1968); Bousfield v. Sisters of 
 
         Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
              It is concluded that, when the degree of impairment 
 
         increases by 50 percent, such is sufficient to warrant reopening 
 
         of the permanent partial disability award absent an evidentiary 
 
         showing that an increase of that magnitude was expected at the 
 
         time of the settlement.
 
         
 
              It is further concluded that claimant is entitled to recover 
 
         compensation for a 20 percent loss of the right leg which 
 
         entitles her to receive 44 weeks  of  compensation  under the 
 
         provisions of Iowa Code section 85.34(2)(o), less the 28.6 weeks 
 
         paid under the agreement for settlement.  The net award in this 
 
         decision is therefore an additional 15.4 weeks of permanent 
 
         partial disability compensation.  Since thi  is a 
 
         review-reopening from an agreement for settlement, the additional 
 
         compensation is payable commencing on the date of
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         PATMAN v. GLENWOOD STATE HOSPITAL
 
         Page 4
 
         
 
         
 
         the decision which awards it.  Bousfield v. Sisters of Mercy, 249 
 
         Iowa 64, 86 N.W.2d 109 (1957).  In those cases where it is 
 
         necessary to show a change of condition in order to obtain 
 
         additional compensation and the employer has complied with a 
 
         prior award or settlement, the doctrines of res judicata or 
 
         preclusion relieve the employer from any obligation to pay 
 
         additional compensation or interest thereon prior to the date of 
 
         the award which increases the extent of disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifteen 
 
         point four (15.4) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred fifty-six and 
 
         98/100 dollars ($156.98) per week payable commencing on the date 
 
         of this decision.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 27th day of June, 1990.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. R. Ronald Pogge
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
               
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NANCY PATMAN,
 
         
 
              Claimant,                              File No. 776700
 
         
 
         vs.                                          R E V I E W -
 
                                        
 
         GLENWOOD STATE HOSPITAL,                   R E O P E N I N G
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
                                                        F I L E D
 
         STATE OF  IOWA,
 
                                                       JUN 16 1989
 
              Insurance Carrier,
 
              Defendant.                       IOWA INDUSTRIAL 
 
              COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Nancy 
 
         Patman, claimant, against Glenwood State Hospital, an agency of 
 
         the State of Iowa, employer who is self-insured, for the recovery 
 
         of further workers' compensation benefits as a result of an 
 
         injury on September 27, 1984.  A prior Iowa Code section 86.13 
 
         compromise settlement for this injury was filed and approved by 
 
         this agency on September 24, 1986.  On October 12, 1988, a 
 
         hearing was held on claimant's petition filed herein and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  No oral 
 
         testimony was received during the hearing.  The exhibits received 
 
         into the evidence at the hearing are listed in the prehearing 
 
         report except for claimant's deposition.  Claimant's request to 
 
         testify by this deposition in lieu of appearing at hearing was 
 
         denied in a pretrial order by another deputy industrial 
 
         commissioner.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated with reference to the medical bills submitted by 
 
         claimant that the fees charged for the services provided are fair 
 
         and reasonable, but their causal connection to a work injury 
 
         remain at issue.
 
         
 
                                   ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding concerns claimant's entitlement to requested 
 
                                                
 
                                                         
 
         medical benefits, including a proposed surgical procedure at the 
 
         expense of the employer.
 
         
 
                             STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant initially broke her right ankle while 
 
         roller-skating with hospital residents in the course of her 
 
         employment.  She later reinjured her ankle when a hospital 
 
         resident kicked her injured ankle before it was fully healed.  
 
         Treatment of these injuries consisted of surgical reduction and 
 
         the implantation and subsequent removal of pins during the 
 
         healing process.  In the settlement, claimant received weekly 
 
         benefits for a 13 percent permanent partial disability to the 
 
         right leg along with full healing period weekly benefits.  It was 
 
         noted by her treating orthopedics physician prior to this 
 
         settlement, James O'Hara, M.D., that further development of 
 
         traumatic arthritis in the ankle was anticipated including use of 
 
         arthritis medication and possible physical therapy.  However, Dr. 
 
         O'Hara stated that he did not anticipate the need for further 
 
         surgery.
 
         
 
              Claimant has now left state employment and moved to the 
 
         State of Arizona.  She currently is working in a microbiology 
 
         laboratory.  According to the medical reports, claimant has 
 
         informed her doctors that she works long hours on her feet in 
 
         this job.
 
         
 
              According to the medical reports, claimant sought treatment 
 
         from a board certified orthopedic surgeon in Arizona, Thomas 
 
         Bodnar, M.D., for complaints.of severe right ankle pain with 
 
         activity in her work and during weather changes.  Dr. Bodnar 
 
         diagnosed that this pain was secondary to the development of 
 
         traumatic arthritis as a result of the September 1984 work injury 
 
         at Glenwood State Hospital.  Initially, he prescribed 
 
         rehabilitation exercises and nonsteroidal anti-inflammatory 
 
         medication.  However, later he began steroid injections on a 
 
         regular basis.  Dr. Bodnar testified in his deposition that 
 
         claimant is getting some relief from these injections, but such 
 
         injections place claimant at risk of serious infections.  In 
 
         November 1987, Dr. Bodnar "strongly recommended" an arthrodesis 
 
         or surgical fusion of the right ankle to eliminate pain.  He 
 
         states that this would reduce claimant's range of motion and 
 
         increase the functional impairment of the ankle.  In his 
 
         deposition, Dr. Bodnar appeared to back away from this strong 
 
         recommendation and stated that the fusion surgery was only a 
 
         surgical option for claimant, not necessarily his recommendation 
 
         and that there are other alternatives preferable to fusion 
 
                                                
 
                                                         
 
         surgery such as use of an ankle brace or seeking other 
 
         employment.  He, however, believes that claimant is in the best 
 
         position to judge the amount of pain she is experiencing and 
 
         whether or not there should be a trade off of some loss of ankle 
 
         motion for a reduction in the constant pain. Claimant has chosen 
 
         to undergo the surgery.
 
         
 
              At the request of defendants, claimant was evaluated by 
 
         Kenneth A. Johnson, another board certified orthopedic surgeon, 
 
         who has extensive teaching and writing experience according to 
 
         his curriculum vitae.. After his examination of claimant in June 
 
         1988, the doctor found evidence of some changes in claimant's 
 
         ankle but recommended against using surgery.  He stated that 
 
         claimant should use a brace and anti-inflammatory medications.  
 
         After a review of the written reports of Drs. Bodnar and Johnson, 
 
         Dr. O'Hara, the original treating physician, agrees with Dr. 
 
         Johnson and recommends against surgery.  He suggests use of 
 
         non-narcotic pain medication, nonsteroidal anti-inflammatory 
 
         drugs and modification of her current job.  However, Dr. O'Hara 
 
         specifically stated that the treatment furnished to claimant by 
 
         Dr. Bodnar was causally connected to the original work injury.
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred for treatment of 
 
         a work injury.  Claimant is entitled to an order of reimbursement 
 
         if claimant has paid those expenses.  Otherwise, claimant is 
 
         entitled to an order directing the responsible defendants to make 
 
         such payments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              In the case sub judice, defendant has denied the causal 
 
         connection of Dr. Bodnar's treatment to the work injury.  
 
         However, defendant has no medical expert to support its position.  
 
         The views of Dr. Bodnar and Dr. O'Hara are uncontroverted.  Both 
 
         opine that the current traumatic arthritis in the right ankle is 
 
         work related.
 
         
 
              Defendant claims that the treatment by Dr. Bodnar was not 
 
         authorized by them,and claimant is not entitled to reimbursement 
 
         for these expenses under Iowa Code section 85.27 because 
 
         employers have the right to chose the care.  However, section 
 
         85.27 applies only to injuries compensable under Chapters 85 & 
 
         85A of the Code and obligates the employers to furnish reasonable 
 
         medical care. This agency has held that it is inconsistent to 
 
         deny liability and the obligation to furnish care on one hand and 
 
         at the same time claim a right to chose the care.  Kindhart v. 
 
         Fort Des Moines Hotel, Vol. 1 Iowa Industrial Commissioner 
 
         Decisions No. 3, 611 (Appeal Decision 1985); Barnhart v. MAQ, 
 
         Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal 
 
         Decision 1981).
 
         
 
              Defendant in this case has throughout these proceedings 
 
         denied the liability for any treatment of her current traumatic 
 
         arthritis condition in the right ankle.  It, likewise, to date 
 
                                                
 
                                                         
 
         has not offered any care for claimant's continuing symptoms.  
 
         Their own expert, Dr. Johnson, suggested additional treatment 
 
         modalities which also have not been offered or paid for by 
 
         defendant.. For that reason and absent a future change in 
 
         defendant's legal position on the issue of liability, defendant 
 
         does not have the right to chose the medical care for such 
 
         problems.  Therefore, the expenses to date for the.treatment 
 
         provided to claimant by Dr. Bodnar are fully compensable.
 
         
 
              It would appear as well that Dr. Bodnar, a board certified 
 
         orthopedic surgeon, is the most appropriate physician to treat 
 
         claimant in the future for her current complaints.  He is already 
 
         actively involved in claimant's treatment and she is satisfied 
 
         with his treatment.  It is in the best interest of claimant to 
 
         remain with her current physician.  No valid reason for a change 
 
         of care has been offered by defendant.  Therefore, continued care 
 
         by Dr. Bodnar will be ordered.
 
         
 
              With reference to the surgery option offered by Dr. Bodnar 
 
         to claimant, it is admitted that should defendant admit to 
 
         liability in the future, defendant would have the right to 
 
         monitor the care with a watchful eye toward preventing 
 
         unreasonable and unnecessary procedures which would unduly add to 
 
         costs.  However, despite their disagreement as to what is the 
 
         best treatment option for claimant to pursue, Dr. Johnson and Dr. 
 
 
 
                      
 
                                                         
 
         O'Hara have not stated that the surgical option proposed by Dr. 
 
         Bodnar would constitute unnecessary or unreasonable treatment.
 
         
 
              It is the claimant who must live with her choices and she 
 
         should have that choice.  The undersigned agrees that claimant 
 
         should probably reevaluate her decision in light of the views of 
 
         Dr. Johnson and Dr. O'Hara and especially the views of her own 
 
         physician set forth in the deposition that there are preferable 
 
         alternatives.  But, as recognized by Dr. Johnson, the decision as 
 
         to which course of treatment to follow is a matter between 
 
         claimant and her doctor.  Whether or not such surgery would 
 
         increase disability is irrelevant when the procedure is designed 
 
         to decrease claimant's constant pain.  If claimant chooses to 
 
         suffer additional loss of range of motion to eliminate pain and 
 
         to remain on a job of her choosing, then she should have that 
 
         option. It should be remembered that claimant did not chose to be 
 
         injured at the work site and to be subjected to constant pain.  
 
         Therefore, the surgical option will be provided to her.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  The medical expenses requested by claimant in the 
 
         prehearing report are fair and reasonable treatment for the work 
 
         injury.  As expected by the original treating physician, Dr. 
 
         O'Hara, claimant has developed traumatic arthritis of the right 
 
         ankle as a result of the original work injury which requires 
 
         additional medical care.
 
         
 
              2.  To date, defendant has denied responsibility for 
 
         claimant's continuing problems in her right ankle and has not 
 
         offered reasonable care to claimant for these problems. .
 
         
 
              3.  Since June 1987, claimant has been treated by a 
 
         physician in the State of Arizona, Thomas Bodnar, M.D., and such 
 
         treatment to date is reasonable and necessary treatment of the 
 
         work injury consisting of exercises, steroidal and nonsteroidal 
 
         anti-inflammatory medication.  However, claimant's ankle pain 
 
         continues to be severe and continuous.
 
         
 
              4.  Continued care by Thomas Bodnar, M.D., in the State of 
 
         Arizona is in the best interest of claimant.  Dr. Bodnar is a 
 
         board certified orthopedic surgeon and most familiar clinically 
 
         with claimant's current right ankle difficulties.
 
         
 
              5.  Proposed fusion surgery of the right ankle by Dr. Bodnar 
 
         is a reasonable and necessary treatment option of the work injury 
 
         although there may be preferable alternatives to such surgery. 
 
         However, the surgery is designed to relieve pain and claimant is 
 
         in the best position to decide whether the pain she experiences 
 
         is worth the risk and potential hazards of surgery.  She has the 
 
         benefit of two second opinions at the present time from very 
 
         qualified physicians and should be able to make an informed 
 
         choice.
 
         
 
                           CONCLUSION OF LAW
 
                                                
 
                                                         
 
         
 
              Claimant has established under law entitlement to the 
 
         medical benefits awarded below.
 
         
 
                                ORDER
 
         
 
              1.  Defendant shall provide at their expense all treatment 
 
         modalities and medication recommended by Thomas Bodnar, M.D., for 
 
         claimant's right ankle traumatic arthritis, including any future 
 
         surgery options which claimant may chose to undergo.
 
         
 
              2.  Defendant shall pay for the past treatment furnished to 
 
         and prescribed for claimant by Dr. Bodnar beginning in June 1987 
 
         and listed in the prehearing report, including medical mileage 
 
         expenses.  Defendant shall reimburse claimant for any of these 
 
         expenses paid by her.  Otherwise, defendant is directed to pay 
 
         the provider directly including any reasonable charges for late 
 
         payment imposed by the provider.
 
         
 
              3.  Defendant shall pay the cost of the action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 16th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. R. Ronald Pogge
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1302.1, 2905, 3800
 
                                         Filed June 27, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NANCY PATMAN
 
         
 
              Claimant,
 
         
 
                                                    File No. 776700
 
         VS.
 
         
 
                                                      R E V I E W
 
         GLENWOOD STATE HOSPITAL,
 
         
 
                                                    R E 0 P E N I N G
 
              Employer,
 
         
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1302.1, 2905
 
         
 
              Where impairment had increased by 50 percent, the magnitude 
 
         of the change was held to be sufficient to establish that the 
 
         change was not anticipated and that it was sufficient to warrant 
 
         reopening of the award.
 
         
 
         3800
 
         
 
              Additional compensation for permanent partial disability was 
 
         held payable commencing on the date of the decision which awarded 
 
         it.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
                  
 
 
 
                                            2505
 
                                            Filed June 16, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NANCY PATMAN,
 
         
 
              Claimant,
 
                                                 File No. 776700
 
         vs.
 
                                                  R E V I E W -
 
         GLENWOOD STATE HOSPITAL, 
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         2505 - Surgical Options
 
         
 
              The employer's failure to admit responsibility for providing 
 
         continuing care resulted in their loss of the right to chose the 
 
         care.  All past medical services provided were awarded to 
 
         claimant.  Although there was substantial disagreement as to 
 
         whether fusion surgery to relieve continuous pain to the ankle 
 
         would be the best course of treatment for claimant, such proposed 
 
         surgery was not shown to be unreasonable or unnecessary treatment 
 
         option.  It was held that the decision to undergo such surgery 
 
         best lies with claimant and her treating physician.  Only 
 
         claimant is aware of the extent of her pain and whether such pain 
 
         is sufficient to risk surgery and probable loss of range of 
 
         motion in her ankle.